Justin Levitt // 6/30/17 //
Kris Kobach just asked for help building a national voter file in two weeks. That’s massively irresponsible. And it might well be illegal.
Yesterday, on behalf of a federal commission that seems slapped together to validate precooked but half-baked conclusions, Kris Kobach asked states to send him all publicly available information in the state voter files.
First, let’s be clear about the scope of the behemoth he wants to assemble in the span of two weeks, with no public conversation. He’s aiming for a national file with hundreds of millions of records. It would include the name, address, political party affiliation (why is this relevant?), and voting history of virtually every voter in America. For some states, it would include at least some, and occasionally all, information about date of birth. For some states, it would include telephone numbers and email addresses. For some states, the voter rolls will include information about minors, who are not yet eligible to vote but are “pre-registered” so that they can vote without undue delay when they turn 18.
Kobach has also asked for Social Security digits and signatures, among other pieces of data. Thankfully, much of that, at least, will be confidential, and should not be turned over. Two weeks is a very short turnaround for a request like this, though -- and the “voter files” for states with millions of records are often not in one neat spreadsheet. Which means that we’d all better hope there are absolutely no mistakes in the compilation and transmission process. Fingers crossed, everyone.
Because Kobach’s commission is subject to federal public records requirements, the data become public the moment they arrive. Yes, they should theoretically only be getting “public information.” But there are a few big differences between the information in each state’s voter file and one national file with hundreds of millions of records.
First, some states have restrictions on who can access not just their own individual voter record, but a full dataset of voter file information. The “voter file” may be widely available, but it’s not necessarily available to everyone. Some of these states limit access to political parties, candidates, or nonprofits, or citizens of the state in question. There’s no such limit in the applicable federal open records rules. Any state with such a restriction that sends information to the Kobach commission has just eviscerated their own law.
Second, some states have restrictions on why you can access the voter file. For example, many states -- like, for example, Texas -- prohibit use of the voter file for commercial purposes. Again, no such limit in federal open records rules. Any state with a use restriction that sends information to the Kobach commission has just eviscerated their own law on that score too.
Third, there is absolutely no information about any security protocols that the Kobach commission may or may not be putting in place -- and remember, Kobach has asked for all of this information in the next two weeks -- for information that, while public, is still fairly sensitive. (The fact that he has asked for this information by email is not promising.) It’s one thing to know that a state may make certain voter file information publicly available through proper channels for the right reasons. It’s quite another to compile hundreds of millions of records of citizen information in one place, and leave the door open for anyone to walk away with the full set.
In the abstract, the information itself isn’t the real problem. There are ways that careful researchers engage voter files that can assist and enlighten. But those researchers don’t just jam hundreds of millions of partial records willy-nilly into a wide-open public pot and stir. It is wildly irresponsible for a federal entity to ask for all of this information without first discussing how it will be used, and whether collecting it for those purposes is a good idea.
And leave aside, for just a moment, what the commission actually plans to do with the data. (Kobach apparently thinks he can match the information he collects with other sources to assess the state of the voter rolls. With the information he’s likely to get, he’ll have profound problems with the accuracy of any conclusions. More on that here and here, from people who know. And here, from me.)
What Kobach is asking may also be illegal.
We’ve long had privacy and security concerns about government recordkeeping in this country. Back in 1974, Congress passed the Privacy Act, regulating how federal government entities keep records. There are a number of substantive requirements for a body like the Kobach commission. Those actually include specific limits on data that Kobach has asked for, like voting history and party affiliation.
And there are also a bunch of procedural requirements, including the requirement to publicize some basic facts on the records you’re collecting – and even to run it by specific Congressional committees. Things like who you’re getting information about, what information you’re getting, where you’re getting it from, how you’re going to use it, how you’re going to regulate access to it, how you’re going to secure it, and how you’re going to protect people from being embarrassed or harmed by your inevitable misuse of it.
These are all basic questions designed to test whether the federal entity collecting and storing personal information has thought through how they’re going to use it and how they’re going to prevent abuse. There’s no indication that the Kobach commission has done any of this homework before sprinting a letter out the door. This shouldn’t be a surprise: the commission asked states to send back data on every single voter in America before they even had their first meeting . Indeed, Kobach sent his request to state officials who don’t oversee elections, showing that he hasn’t even done enough homework to know whom to address his letter to.
For someone attempting to amass a database of hundreds of millions of records of personal citizen information in a hurry, that’s not a particularly encouraging sign. And I would certainly hope that a body ostensibly recommending election integrity measures would take steps to ensure their own compliance with the law along the way.
Several state officials have already said they do not intend to comply with the request. Others would do well to consider the extent to which delivering the data would break or skirt the law (including the law of their own states), or otherwise jeopardize the privacy of their citizens in even “public” information. July 14 is the date by which Kobach has requested the files. That’s around the corner. But there should be plenty of time for officials responsible for their citizens’ personal data to have second thoughts about turning it over.